Defamation / Reputation, Press Freedom, Privacy, Data Protection and Retention
Bloomberg LP v. ZXC
Closed Mixed Outcome
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The European Court of Human Rights found that a restriction on the publication of private information did not violate the publisher’s Article 10 rights. However, excessive success fees as costs for liability was a violation of Article 10. The applicant was the publisher of UK’s national daily newspaper, the Daily Mirror. The paper published several articles regarding Ms. Naomi Campbell’s drug addiction. The articles provided details of the addiction and treatment, and two photographs of Ms. Campbell waiting outside the place of treatment. In a 6:1 decision, the Court found that disclosing that Ms. Campbell was a drug addict in treatment was in the public interest because Ms. Campbell had previously publicly denied drug use. However, additional details of her method of treatment and the two photographs were not in public interest and violated Ms. Campbell’s right to privacy. As part of a conditional fee agreement, the applicant was required to pay 95% and 100% of the costs in the House of Lords as success fees to the solicitors involved. The Court held that the success fees was a disproportionate interference with the applicant’s right to free speech because it could have a chilling effect on media organisations, discouraging them from publishing legitimate information and encouraging them to settle claims instead of defend them.
The case involved a series of articles published by daily newspaper The Daily Mirror against Ms. Naomi Campbell, a renowned British model. The articles published in February 2001 disclosed details of the models’ drug addiction, treatment plan and included surreptitious photographs of her standing outside the Narcotic Anonymous (NA) centres captioned “Therapy: Naomi outside meeting” and “Help: Naomi leaves Narcotics Anonymous meeting last week after receiving therapy in her battle against illegal drugs” [para. 6].
Ms. Campbell sued the MGN, the publisher of the Daily Mirror and applicant in the present case claiming a breach of confidence under the UK Data Protection Act, 1998.
The High Court applied the three-part test of confidentiality i.e., whether the disclosure had a “the necessary quality of confidence”; was “imparted in circumstances importing an obligation of confidence” and “caused her significant distress” to hold in favour of Ms. Campbell [para. 14]. Divulging information on treatment plans and NA meetings would be considered private by any reasonable person. Moreover, they were received by an insider- either a staff member or an attendee of the meetings and could impede her progress and participation in future meetings. Balancing her right to privacy under Article 8 against the applicant’s right to publish under Article 10, the High Court considered that publishing facts of her addiction and treatment was in public interest because she had previously publicly denied drug use. However, despite her celebrity status, publishing information that had the “badge of confidentiality” in the public domain amounted to breach of confidence [para. 17].
On appeal, the Court of Appeal reversed the High Court ruling. It held that details on treatment from NA meetings was not a disclosure of clinical details of medical treatment and was a peripheral disclosure, not sufficient to justify the intervention of the court. Further, the photographs added legitimacy to the journalists’ claims that Ms. Campbell received treatment from NA. Article 10 grants journalists “reasonable latitude” as to the manner of presenting information [para. 24].
In a 3:2 decision dated May 6, 2004, the House of Lords allowed Ms. Campbell’s appeal and restored the High Court’s judgment.
The majority recognised the competing interests between rights protected under Article 8 and Article 10 in a democratic society.
According to Justice Hope, whether the Article 10 restriction was fair, rational, not arbitrary and minimal depended on the balance between the duty of the press in imparting information of public interest and their freedom on editorial control on the one hand, and Ms Campbells’ right to privacy on the other. The public’s right to details of Ms. Campbell’s treatment was of a much lower order than its right to know of her misleading statements. While the information published had no associated political or democratic values or pressing social need, it intruded with the models’ private life. Thus, despite the weight needed to be accorded to the freedom of the press, the violation of privacy was not justified.
Baroness Hale and Justice Carswell agreed. Applying the “reasonable expectation of privacy” test, Baroness Hale found that although the information disclosed was not a clinical medical record, it was an important aspect of her mental and physical health and could jeopardise further treatment [para. 34]. The photographs were not necessary to corroborate the article. Instead, it could potentially harm her, planting doubts that she was being followed.
In the dissenting opinion, Justice Hoffman and Justice Nicholls found that the additional information and photographs published were within the publisher’s right to free speech. Details of her treatment added little to the addiction story, which the majority agreed was legitimate to publish. The photos caused no embarrassment and added nothing of private nature. Thus, the journalists had the right to publish the information and the impact on Miss Campbells’ right to privacy was relatively minor.
The House of Lords also dealt with issues concerning legal costs. In the High Court and Court of Appeal, Ms Campbell’s solicitors and counsel had acted under an ordinary retainer. But the appeal to the House of Lords was conducted pursuant to a Conditional Fee Agreement (“CFA”) which provided that if the appeal succeeded, solicitors and counsel would be entitled to base costs as well as success fees amounting to 95% and 100% of the base costs, respectively. Section 58 of the Courts and Legal Services Act 1990 introduced CFAs for a limited range of litigation. It is “an agreement between a client and a legal representative which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances (for example, if successful)” [para. 177].
The applicant appealed to the House of Lords, pleading that the success fees were a disproportionate liability that interfered with their right to freedom of expression. The appeal was unanimously dismissed. The House of Lords found that the existing CFA regime with recoverable success fees was compatible with the Convention.
The applicant moved to the European Court of Human Rights, alleging that the decision upholding Ms Campbells’ claim for breach of confidence and the success fees to be paid as a result of the decision, violated their right to freedom of expression guaranteed under Article 10.
1) Whether the decision upholding Ms Campbells’ claim for breach of confidence violated the applicant’s freedom of expression
In a 6:1 decision, the Court held there had been no violation of Article 10 in finding a breach of confidence by the applicant.
The applicant argued that the details of the NA meetings and the photographs were justified and caused minor intrusion into the models’ life. Relying on the minority decision, they argued that the majority had not accorded sufficient weight to the editors’ judgment in publishing details required to maintain the credibility of a story. It disclosed nothing additional to what was legitimately allowed to be published and did not cause Ms. Campbell any additional distress. In the present case, the applicant’s right to editorial discretion weighed heavier than Ms. Campbell’s right to privacy.
The Government argued that the majority decision had balanced the competing rights under Article 8 and Article 10 before coming to its conclusion. It emphasized that there was a clear qualitative difference between the fact that Ms. Campbell was a drug addict in treatment and the release of details about her treatment. As the treatment was ongoing, disclosure of those facts could jeopardize her willingness or ability to continue treatment. The decision by the House of Lords fell within its permitted margin of appreciation.
For a restriction to be a permissible restriction, it has to satisfy the criteria set out in Article 10 (2). In that respect, the Court must determine whether interference was “prescribed by law”, pursued one or more of the legitimate aims listed in that paragraph and was “necessary in a democratic societ” in order to achieve the aim(s).
Upholding the majority’s decision in the House of Lords, the Court found that the restriction was prescribed by law, pursued the legitimate aim of protecting Ms. Campbell’s right to respect for her private life, and was necessary.
Recognizing the crucial role of the press in publishing information of public interest and their freedom in deciding the technique of reporting, the court held that “editorial discretion is not unbounded” [para. 141].
Relying on Chassagnou and Others v. France App nos. 25088/94, 28331/95 and 28443/95 (April 29, 1999), the Court held that in reviewing a national authority’s decision in balancing two rights guaranteed by the Convention, national authorities are granted a margin of appreciation. In the present case, the right of the public to receive details and photographs on Ms. Campbell’s treatment had to be balanced against the model’s right to privacy.
The court cited Campmany y Diez de Revenga and Lopez Galiacho Perona v. Spain App
Contrary to the applicant’s argument, the House of Lords had accorded sufficient weight to the rights and duties of journalists before coming to its decision. All the three lower courts made a qualitative distinction between core facts in public interest based on what she had already denied publicly and additional private information she meant to keep private. They only differed in the application of these principles to the facts of the case.
Considering the margin of appreciation given to national courts, the Court would require strong reasons to interfere with the House of Lords decision.
The House of Lords concluded that publishing the additional information about that treatment was detrimental to Ms Campbells’ continued treatment with NA and risked causing a significant setback in her recovery. The photographs had been taken covertly with a long-range lens outside the place treatment and would have been clearly distressing for a person of ordinary sensitivity in her position and faced with the same publicity. The photographs had not been taken generally but with the intention to include them in the article and were accompanied by captions that made it clear she was coming from her NA meeting. Since these were “relevant and sufficient reasons” to restrict editorial freedom, the Court found “no strong reason” to interfere with the decision.
Dissenting opinion of Judge Björgvinsson
Judge Björgvinsson disagreed. He found the distinction made by the majority between the original story and the supplementary material to be unconvincing.
Relying on Fressoz and Roire v. France App No. 29183/95 (January 21, 1999) among other cases, the court found that in balancing Article 8 and Article 10 rights, the court makes an independent assessment of the facts. It is the duty of the Court to review not only whether relevant principles have been applied but also to review that they have been applied correctly.
Agreeing to the views of Lord Hoffman and Lord Nicholls, he held that the additional information was only supplemental to the original story, “adding colour and conviction” [p. 62].
2) Whether the success fees to be paid by the applicant as a result of the decision violated their right to freedom of expression.
On the issue of violation of Article 10 concerning recoverable success fees, the publisher stated that the requirement to pay the success fees to Ms. Campbell’s lawyers interfered with the applicant’s freedom of expression. While it was “prescribed by law, it did not pursue a legitimate aim and was not necessary in a democratic society.” [para. 162].
The applicant argued that apart from being excessive, the fees were disproportionate and punitive, which constituted a chilling effect on the applicant as a media organisation. The financial impact of CFAs encouraged media organisations to settle claims instead of defending them and deterred organisations from publishing material, which would otherwise be proper to publish. Further, the success fees had failed to achieve their goal of providing underprivileged but deserving claimants with access to justice. There were no obligations or mechanisms in place to prevent a lawyer from using success fees earned in one case to take on other underprivileged but deserving claimants. Joint submissions were also made by third parties like Open Society Justice Initiative, Media Legal Defence Initiative, Index on Censorship, the English PEN, Global Witness and Human Rights Watch. They highlighted the chilling effect of high costs in defamation proceedings on small budget organisations like NGOs and small media organisations since they are often involved in investigative reporting and disseminating information on issues of significant public interest.
The Government submitted that recovery of success fees was subject to a number of safeguards that struck a proper balance between the interests of unsuccessful litigants and the objective of expanding access to justice in line with Article 6 of the Convention.
On the issue of whether the success fees recoverable against unsuccessful defendants are “necessary in a democratic society”, the Court stated that it must weigh the reasonableness of the costs against not only the claimant’s reasonable and proportionate costs but also against the prospect of the fees enabling general access to justice. Relying on Jersild v. Denmark (23 September 1994, § 31, Series A no. 298), the court agreed that legislature enjoys a wide margin of appreciation in implementing social and economic policies, however, measures taken by a national authority which are capable of discouraging the participation of the press in debates over matters of legitimate public concern must be carefully considered.
The court noted several points on the inherent flaws in the recoverability of success fees in civil litigation from the Jackson Review, commissioned by the Ministry of Justice.
These flaws included the “blackmailing” or “chilling” effect of the system of recoverable success fees. The costs caused an excessive burden on the opposing parties which drove defendants to settle early despite good prospects of a successful defence. Second, the system provided no incentives to claimants to keep track of their legal expenditures. This led to an increase in costs. Finally, the system provided lawyers an incentive to “cherry pick” cases with higher success fees. As a result, the law did not meet its objective of improving access to justice. Instead, it made it easier for lawyers to take on meritocratic claims with high success fees and avoid less meritorious claims which deserved to be heard [para. 210]. The subsequent House of Commons report of 2010 recognised similar flaws. In March 2010, the Ministry of Justice sought a reduction of success fees from 100% to 10% of the base costs in defamation and privacy cases as an interim proposal which was intervened by general elections in April.
Based on these discussions, the court accepted that the measures exceeded the margin of appreciation granted to the State to pursue social and economic interests and hence violated Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision restricts the right of the press in publishing personal and private information. The Court found that publishers need to be careful of the nature of the information and the impact it could have on the person, regardless of them being a public figure. Where the celebrity themselves divulged some information from their private sphere, the press has a right to write about it in public interest. However, any additional information brings the risk of falling out of the protection granted by Article 10.
Alternately, ruling expanded press freedom in finding that the success fees were disproportionate, created an excessive burden and could have a chilling effect on the ability of the press to report on matters of public concern. The Court found that the fee system did not improve access to justice as it was rife with negative incentives. By pressing defendants to settle early, despite good prospects of a successful defense, important cases might not be heard.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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